Arrest and Detention of a Child should be in Accordance with a Child’s Rights.
September 16, 2016
Arrest and Detention of a Child should be in Accordance with a Child’s Rights.
Raduvha v Minister of Safety and Security and Another
Case CCT 151/15
Constitutional Court of South Africa
Mogoeng CJ, Moseneke DCJ, Bosielo AJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J, Mhlantla J, Nkabinde J and Zondo J
August 11, 2016
Reported by Linda Awuor & Faith Wanjiku
Constitutional Law-Bill of Rights-Children-whether the Applicant’s arrest and detention were lawful on her being a child-Constitution of the Republic of South Africa, 1996, section 28 (1) (g), 2
Constitutional Law- Bill of Rights-Arrested, Detained and Accused Persons-whether the detention as referred to in section 28(1) (g) of the Constitution included arrest- Constitution of the Republic of South Africa, 1996, section 35 (1), (2)
Criminal Procedure-Arrest-Arrest by Peace Officer without Warrant- whether the Applicant’s arrest and detention were exercised with discretion on her being a child-Criminal Procedure Act 51 of 1977, section 40 (1)(j)
On April 6, 2008, two members of the South African Police Service (SAPS) were sent to the house of the Applicant’s mother to investigate a complaint of contravention of a protection order which had been issued against the Applicant’s mother. Upon arrival at her home, the police officers found her in the company of her family. When the police officers attempted to arrest her, her 15 year old daughter, the Applicant, intervened and interposed herself between her mother and the police officers to stop them from arresting her mother. The police officers regarded this as an unlawful obstruction of the execution of their lawful duties.
Relying on section 40(1) (j) of the Criminal Procedure Act (CPA), the two police officers arrested the Applicant for interfering with them in the execution of their duties. They then forcibly put her in the police vehicle. The Applicant’s mother was also arrested for a violation of the protection order. Both the Applicant and her mother were taken to the nearest police station, where they were detained until the next day when they were released on warning after approximately 19 hours. Subsequently, the Public Prosecutor declined to prosecute them.
The Applicant instituted a claim for damages in the South Gauteng High Court, Johannesburg (High Court) against the Respondent arising from her alleged unlawful arrest and detention. The High Court dismissed her claim. Her appeal to the Full Court was unsuccessful. Her petition for special leave to appeal to the Supreme Court of Appeal having been dismissed, she then sought leave to appeal to the Court against the decision of the Full Court.
i.Whether the Applicant could be granted condonation.
ii.Whether the Applicant could be granted leave to appeal.
iii.Whether the detention as referred to in section 28(1) (g) of the Constitution included arrest.
iv.Whether the Applicant’s arrest and detention were exercised with discretion of her being a child.
v.Whether the Applicant’s arrest and detention were lawful.
vi.Whether section 28(2) of the Constitution created an additional jurisdictional requirement for a lawful arrest under section 40(1) of the CPA.
vii.Whether the Court could determine quantum based on the Applicant being successful on the merits.
Relevant Provisions of the Law
Constitution of the Republic of South Africa, 1996
Section 28 (1) (g)-Children
(1) Every child has the right—
(g) not to be detained except as a measure of last resort, in which case, in addition to the rights a child enjoys under sections 12 and 35, the child may be detained only for the shortest appropriate period of time, and has the right to be—
(i) kept separately from detained persons over the age of 18 years; and
(ii) treated in a manner, and kept in conditions, that take account of the child’s age;
Section 28 (2)-Children
A child’s best interests are of paramount importance in every matter concerning the child.
Criminal Procedure Act 51 of 1977
Section 40 (1) (j)-Arrest by Peace Officer without Warrant
A peace officer may without warrant arrest any person-
(j) who wilfully obstructs him in the execution of his duty;
- The Application was late by almost a month whose delay warranted an explanation. The Applicant ascribed her delay to financial constraints and family difficulties brought about by the passing away of her mother. She averred that her financial woes were exacerbated by the fact that her father was a pensioner whilst she was still a student. The delay was not inordinate and the explanation appeared to be reasonable. There was no suggestion that the Respondent had suffered any prejudice. The matter raised important constitutional issues affecting the right to liberty, the right to dignity and the rights of children. The interests of justice militated for the granting of condonation which was granted.
- The case pitted the constitutional duty of the police to prevent, combat and investigate crime as set out in section 205 of the Constitution against the rights of children in conflict with the law, seen through the prism of section 28 of the Constitution. It did so in the context of the police power to arrest and detain suspects in terms of section 40 of the CPA. A number of constitutional rights were at play which included the rights of people to their freedom, dignity, and the rights of children contrasted with the duties of the police to safeguard society by investigating, combating and preventing crime, and essentially to uphold and enforce the law. The importance of the case to the general public was beyond question. Except for criminal matters involving sentencing of child offenders, the Court had never had an opportunity to deal expressly with a case involving the arrest and detention of a child in conflict with the law against the backdrop of section 28 of the Constitution. The case met the threshold of the interests of justice. There were reasonable prospects of success hence leave to appeal was granted.
- Section 35 of the Constitution treated arrest and detention differently and in two separate subsections. Section 35(1) read that everyone who was arrested for allegedly committing an offence had specific rights. Subsection (2), in turn, related to everyone who was detained, including every sentenced prisoner and recognised its own set of rights. Evidently, section 35(1) and (2) drew a bright line between arrested and detained persons.
- The CPA was aligned with section 35 of the Constitution. It treated arrest as different and separate from detention. The authority of police officers to arrest resorted under sections 40 and 41 of the CPA. Section 40(1) authorised police officers to arrest persons who committed or were suspected, on reasonable grounds, of committing certain specified offences. Section 41 authorised a police officer to arrest forthwith and without a warrant any person who was reasonably suspected of having committed or of having attempted to commit an offence or who, in the opinion of such a police officer, furnished to the police officer a name or address which the police officer suspected to be false.
- Section 50 dealt with the procedure after arrest. Section 50(1) required that any person who was arrested with or without a warrant for allegedly committing an offence or for any other reason had to be brought to a police station for detention as soon as possible. Any person who was arrested on a warrant could be taken as soon as possible to the place mentioned in the warrant for detention. As a result, arrest and detention were separate legal processes. The fact that both resulted in someone being deprived of his or her liberty did not make them one legal process.
- The police officers did not consider the crucial facts that the Applicant was no danger to them; that they could have handled or subdued her with ease; that she did not try to run away from them; that she was not causing any physical harm to them; that she was at or near her parental home and, importantly; that her father was present with them. No doubt such an approach to an arrest of a minor was incompatible with section 28(2) of the Constitution. If the police officers had considered the Applicant’s best interests, there could have been no reason for them to arrest her. They could have resorted to section 38 of the CPA, by either issuing a summons, a written notice or, as her father was present, leaving her in his custody with instructions for him to bring her to court. It followed that the Applicant’s arrest was inconsistent with the Constitution and therefore unlawful.
- Section 39(1) commanded a court, tribunal or forum, when interpreting the Bill of Rights, to promote the values that underlay an open and democratic society based on human dignity, equality and freedom. The case was a constitutional injunction. Both the High Court and the Full Court were constitutionally obliged to consider the evidence through the lens of section 28(2) of the Constitution to determine if the police officers considered the Applicant’s best interests, and if they did, whether they accorded them paramount importance. However, it did not appear from the judgments of either Court that there was compliance with the constitutional injunction.
- The Courts were enjoined by section 39(1) of the Constitution when interpreting any legislation to promote the values that underlay an open and democratic society based on human dignity, equality and freedom. That required the courts to play a crucial role in giving content and meaning to the fundamental rights enshrined in the Bill of Rights. Therefore the courts were the guardians of the Constitution and the values it espoused. In interpreting the law they had to infuse it with values of the Constitution. Courts could never shirk the constitutional responsibility.
- The Constitution was underpinned by a Bill of Rights that, according to section 7, was declared a cornerstone of democracy. Section 7(2) commanded the State, including the Judiciary, to respect, protect, promote and fulfill the rights in the Bill of Rights subject to the limitations in section 36 or elsewhere in the Bill. Section 7(2) talked of the State. The Executive was also required to honour the obligation to respect, protect,promote and fulfill the rights in the Bill of Rights. That was crucial as the police were, in the daily execution of their duties, involved in instances that had the potential to affect people’s rights to dignity, equality and freedom, which were foundational to the democracy. The people deserved a police service which was steeped in a culture of respect for human rights. That required them in all their dealings with society whilst executing their constitutional duties to be guided by respect for human rights and strict observance of the rights to human dignity, equality and freedom.
- Given the importance which the Constitution placed on the rights of children, an arrest of a child could be resorted to when the facts were such that there was no other less invasive way of securing the attendance of such a child before a court. That required police officers to consider and weigh all the facts carefully and exercise a value-judgment whether an arrest could be justified. Invariably that put them in an invidious position. All that the Constitution required in section 28 (2) was that, unlike pre-1994, and in line with the solemn undertaking as a nation to create a new and caring society, children had to be treated as children; with care, compassion, empathy and understanding of their vulnerability and inherent frailties. Even when they were in conflict with the law, the hand of the law could not be permitted to fall hard on them like a sledgehammer lest it destroyed them. The Constitution demanded that the criminal justice system be child-sensitive.
- In line with their constitutional obligation, both the High Court and the Full Court were obliged to interpret section 40(1) of the CPA through the prism of section 28(2) of the Constitution to determine if the police officers had accorded the Applicant’s best interests paramount importance. That was a constitutional obligation imposed on them by section 39(2) of the Constitution.
- There was no need to have made section 28(2) of the Constitution an additional jurisdictional requirement. It was sufficient that in arresting a child, police officers had to do it through the lens of the Bill of Rights and pay special attention to the paramount importance of the best interests of such a child. The Constitution demanded that of the police as a constitutive part of the State. A failure to do that could have rendered such an arrest inconsistent with the Constitution and thus unlawful.
- It was a known fact that detention centres, be it police holding cells or correctional centres, were not ideal places. They were not homes and were bereft of most facilities which one required for raising children. The atmosphere was not conducive to children’s normal growth, healthy psycho-emotional development and nurturing as children. The Applicant was seriously traumatised by the experience. Her detention left her with serious psycho-emotional problems, wounds that were still festering. Those were the deleterious effects of incarceration against which the Constitution sought to protect children. That was the reason why, even when a child had to be detained, section 28(1) (g) stipulated that it was to be for the shortest appropriate time.
- The Applicant’s detention in the circumstances of the case was not justifiable as a measure of last resort. The Applicant was arrested at her parental home in the presence of both her parents and, importantly, her father was available and willing to take her into his custody; nothing prevented the police officers from leaving the Applicant in the custody of her father with appropriate instructions to ensure her appearance in court; and significantly, the police officers conceded that she was not a flight risk. There being no evidence that they considered her circumstances to determine if her detention was a measure of last resort, it followed that her detention was in flagrant violation of section 28(1) (g). It was therefore unlawful.
On appeal from the Full Court of the Gauteng Local Division of the High Court, Johannesburg:
a) Condonation was granted.
b) Leave to appeal was granted.
c) The order of the trial Court was set aside and replaced with the following:
i. The Minister of Police was liable to the Applicant for damages that could be proved.
ii. The Minister of Police had to pay the Applicant’s costs.
d) The order of the Full Court was set aside.
e) The Minister of Police had to pay the Applicant’s costs in the Full Court and the Supreme Court of Appeal.
f) The matter was remitted to the Gauteng Local Division of the High Court, Johannesburg for the determination of the amount of damages payable.
g) The appeal was upheld with costs, including the costs of two counsel.
Relevance to the Kenyan Situation
The Constitution of Kenya, 2010 provides for the rights of a child during arrest and detention in the Bill of Rights under Chapter 4. In particular, article 53 (1) (f) states that every child has the right not to be detained, except as a measure of last resort, and when detained, to be held for the shortest appropriate period of time; and separate from adults and in conditions that take account of the child’s sex and age. Sub article 2 provides that a child’s best interests are of paramount importance in every matter concerning the child.
The Children Act, Chapter 141 Laws of Kenya provides in section 4 (2) that in all actions concerning children, undertaken by public and private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. Section 4 (3) goes ahead to state that all persons acting under the institutions shall treat the interests of the child as the first and paramount consideration to safeguard the rights and welfare of a child.
In VBC v Republic , the Court altered the conviction and sentence of the Accused to rehabilitation for being convicted and sentenced while a minor. It cited violation of article 53 (1) (f) of the Constitution in relation to arrest and detention of a minor.
In I PA v Republic , the Court dismissed the Appellant’s 20 year sentence to Community Service Order for 1 year after finding the Trial Court to have erred and violated article 53 which was clear that children should not be detained except as a measure of last resort and when detained to be held for the shortest appropriate period of time and separate from the adults and in conditions that took into the account the child’s sex and age.
The Constitution of Kenya, 2010, just like the Constitution of South Africa, treats the rights of a child as of paramount importance hence the South African case will act as an important precedent in similar situations.